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‘NHI and the Constitution - Balancing the rights of 8.5 million medical scheme members with the rest of the population’ Adv Paul Allen Wayburne Member of the Johannesburg Bar PhD Candidate (Wits - Expected Dec 2013)

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Page 1: Adv Paul Allen Wayburne Member of the Johannesburg Bar PhD ...crm.bhfglobal.com/files/bhf/Paul Wayburne.pdf · Adv Paul Allen Wayburne • Member of the Johannesburg Bar • PhD Candidate

‘NHI and the Constitution - Balancing the rights of 8.5 million medical scheme members with the rest of the population’

Adv Paul Allen Wayburne • Member of the Johannesburg Bar • PhD Candidate (Wits - Expected Dec

2013)

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Outline of Presentation

1. Libertarian and egalitarian approaches to health reform. 2. National Health Insurance (‘NHI’) 3. The Chaoulli case from the Supreme Court of Canada 4. The South African Constitution - its importance to the NHI

debate 5. Whether NHI is consistent with the Constitution?

• Enhancing access to health care for the majority of the population.

• Protecting the interests of medical scheme members. • The importance of having a balanced approach.

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Elements of National Health Insurance based on Green Paper 1. Universal coverage – Citizens and legal residents will be

entitled to benefit from NHI regardless of contribution. 2. Single NHI Fund that will procure health care services on

behalf of entire population. 3. No person will be permitted to opt out of liability to

contribute to NHI. 4. Medical schemes will continue to exist in some form. 5. Primary health care approach. 6. Accredited hospitals will be contracted to provide services to

patients. 7. Comprehensive basic package of health care benefits (not

clear what this means).

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Libertarian Approach - 1

• Negative liberty/freedom - Emphasis on individual liberty from the State

• Isaiah Berlin – ‘I am normally said to be free to the degree to which no man or body interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree.’ (Four Essays on Liberty, Oxford University Press, 122).

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Libertarian approach – continued.

John Stuart Mill: ‘There is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by force of opinion and even by that of legislation’. (John Stuart Mill On Liberty) ‘In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. (John Stuart Mill, On Liberty)

Page 6: Adv Paul Allen Wayburne Member of the Johannesburg Bar PhD ...crm.bhfglobal.com/files/bhf/Paul Wayburne.pdf · Adv Paul Allen Wayburne • Member of the Johannesburg Bar • PhD Candidate

Libertarian Approach - continued

• Application to health care: • Individuals must be as free as possible to access health care. • Immaterial that some people are less able to access health care

than wealthier people. Poverty is not a defining factor of the absence of freedom.

• State involvement in financing and provision of health care must be limited. It must not curb freedoms of individuals.

• It is immaterial that there are inequalities relating to the provision of health care services.

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Egalitarian Approach - 1

• ‘Equal health care for equal need’ • Derived from egalitarian principle – ‘government must act to make

the lives of those it governs better lives, and it must show equal concern for the life of each. ’ (Dworkin Sovereign Virtue)

• Redistribution. • Freedom should not come at the expense of equality. • State plays central role in facilitating access to health care services. • Suspicion of private sector entities because of profit motives. • State is the only entity capable of enhancing access to health care for

all South Africans.

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Chaoulli v Quebec (Supreme Court of Canada) • Challenged the constitutionality of the

legislative ban on parallel private health insurance as being inconsistent with Canadian and Quebec Charters

• Basis of challenge was that persons with sufficient money were prevented from accessing health care in the private sector.

• Only unconstitutional in cases where waiting lists had adverse affect on health of patient.

Page 9: Adv Paul Allen Wayburne Member of the Johannesburg Bar PhD ...crm.bhfglobal.com/files/bhf/Paul Wayburne.pdf · Adv Paul Allen Wayburne • Member of the Johannesburg Bar • PhD Candidate

Majority Judgment

• Legislation inconsistent with section 1 of the Quebec Charter, which states:

• Every human being has a right to life, and to personal security,

inviolability and freedom.

• ‘a health care service that does not attain an acceptable level of quality of care cannot be regarded as a genuine health care service. Low-quality services can threaten the lives of users.’ (para 50).

• Held that there were other ways that the integrity of the public system can be protected.

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Concurring Majority Judgment

• Agreed with majority that legislation inconsistent with section 1 of Quebec Charter.

• Also inconsistent with section 7 of the Canadian Charter: ‘Everyone

has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’.

• ‘[a]ccess to a waiting list is not access to health care.’ (para 123) • Only those cases where adverse affects are serious and clinically

significant.

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Minority Judgment

• Legislative prohibition was rationally related to legitimate government purpose of protecting the public system.

• Emphasis on equality – Cannot have two health systems • The absence of private health care did not violate the rights of the

residents of Quebec on an equal basis, because poor persons and others who cannot obtain private health insurance are not adversely affected by the legislative prohibition.

• Equal health care for equal need

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Criticisms of majority

• Jeff King – ‘In this case, the Charter privileged to security of the person over the competing interest of providing effective and efficient public health care to those who cannot afford private health insurance.’

• Martha Jackman – ‘The result of the majority’s reasoning and choice of

remedy is that those with the ability to pay, and who otherwise qualify can buy health insurance and care outside the public system. Those who are left, however–those who lack the financial means, who are already ill or who are disabled, and who can’t therefore obtain private health insurance are effectively denied a remedy to the rights violation… They, in short, are left to languish and die on public waiting lists. At best, the majority’s remedy is an under-inclusive one, enabling only those relatively advantaged individuals who qualify for and are able to afford private insurance to jump the public queue. ’

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Criticisms of majority

• Andrew Hutchinson Access to Health Care, Access to Justice: • ‘People are treated as rational and private individuals who

share little more than an abstract humanity. By treating everyone as the same and equally placed to exercise rights, this political approach ignores the very different material and social conditions in which people live. It depicts a just society as one in which achievement of personal liberty and social justice can be effected without concern for serious economic equality… Indeed Chaoulli confirms that the extent of a person’s wealth and resources remains the real measure of citizenship.’

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Criticisms of the minority

• Patrick Monahan: State may not restrict liberty to access parallel private health insurance and not offer reasonable health care in the public sector.

• Equality of vengeance – ‘it cannot be open to government, in any event, to

prohibit one person from utilizing his or her own resources to purchase services that are necessary to his or her health on the grounds that someone else cannot afford to purchase the same service and then refuse to provide the needed service to both persons. That course would truly represent equality with a vengeance, a desire to enforce an equal outcome even if the perverse result is to deny everyone concerned timely access to needed medical care. In essence, it would treat individuals as mere objects or means to the achievement of a political ideology, without regard to the consequences for actual human beings.

• No point in having equal access to inadequate care.

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Criticisms of the minority

• No differentiation between different classes of care

• Minority does not indicate if the prohibitions would ever be inconsistent with the Charter

• Must allow some persons to escape consequences of a bad public health system

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South African Constitution

Section 7(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. Section 7(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

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South African Constitution

Value of Equality

• Substantive equality

• Redistributive equality

• Differential treatment is not inconsistent with value of equality.

• Social Solidarity – fair use of resources

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South African Constitution

Value of Freedom • Positive freedom • Rejection of negative freedom – concerns

regarding redistribution • Capability • People are not free unless they have capability of

achieving potential • Poverty and lack of access to essential resources

inimical to constitutional freedom

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Section 9 of the Constitution

Equality.

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(1) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(2) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(3) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination

(4) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

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Section 9 of the Constitution

Equality.

• Rationality review

• Section 9(2) – Minister of Finance v Van Heerden 3 stage test

• Full and equal

• Fairness – concerned with context and impact

• Offensive to dignity.

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Section 12 of the Constitution

Freedom and Security of the Person

(1) Everyone has the right to freedom and security of

the person, which includes the right—

(a) not to be deprived of freedom arbitrarily or without just cause;

(b) not to be detained without trial;

(c) to be free from all forms of violence from either public or private sources;

(d) not to be tortured in any way; and

(e) not to be treated or punished in a cruel, inhuman or degrading way.

(2) Everyone has the right to bodily and psychological integrity, which includes the right—

(a) to make decisions concerning reproduction;

(b) to security in and control over their body; and

(c) not to be subjected to medical or scientific experiments without their informed consent.

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Section 12 of the Constitution

Ferreira v Levin

• Dealt with section 11 of the Interim Constitution ‘Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.’

• Rejection of negative liberty as sole defining characteristic of freedom as a value in the Constitution.

• Limited residual character. Rejection of minority’s assertion to define freedom and widely as possible.

• Primarily concerned with right to physical integrity. Not clear whether right will have application to health related issues.

• Majority concerned about stunting effects relating to redistribution.

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Section 12 of the Constitution

Meaning of Section 12

• Appears to be separate rights of freedom and security and not one composite right

• Right to security is engaged whenever there is a threat to life of physical security (Law Society).

• Right to security means a right to physical integrity (Ferreira & Law Society)

• Right to freedom not properly defined beyond enumerated rights.

• Right to physical and psychological integrity likely implicates health related interests

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Section 27 of the Constitution

Health care, food, water and social security.—

(1) Everyone has the right to have access to—

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

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Section 27(1) of the Constitution

Conjunctive reading of sections 27(1) and (2).

Everyone – No legislative exclusion on entitlement to benefit

Access – General Comment 14 – Non-discrimination, physical accessibility, economic accessibility and information accessibility.

• Right to housing is more than bricks and mortar

Health care services – Soobramoney, Treatment Action Campaign and Law Society

Law Society

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Section 27(2) of the Constitution

• The State

• Reasonable legislative and other measures

• Within available resources

• Progressive realisation

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Section 27(2) of the Constitution

Reasonableness (Grootboom)

• The programme must be capable of facilitating the progressive realisation of the right.

• Wide range of measures could be adopted by the state to meet its obligations (TAC)

• A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. (TAC)

• Programme must be reasonable in its conception and its implementation.

• Appropriate financial and human resources must be distributed equitably to provincial and national governments.

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Section 27(2) of the Constitution

Reasonableness (Grootboom)

• Programme must be balanced and flexible.

• Regard must be had to the capacity of institutions responsible for implementing the programme

• Short medium and long term needs.

• Measures cannot leave out of account the degree and extent of the denial of the right.

• Those whose needs are most urgent cannot be left of account.

• Must respond to the needs of the most desperate.

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Section 27(1) of the Constitution

• Negative right not to be deprived of existing access.

• Proportionality, reasonableness and section 36 of the Constitution.

• Law Society v Minister for Transport

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Conclusions on NHI - Egalitarian

1. Redistribution in the public interest

2. Universal Entitlement to membership

3. Reasonableness

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Conclusions on NHI – Private sector

1. Increased rationing under NHI and capacity constraints

2. Redistribution of private hospital resources

3. Diminished role of medical schemes

4. Focus on primary healthcare

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CONCLUSION

Amitai Etzioni – The Spirit of Community: Rights Responsibilities and the Communitarian Agenda (1995) ‘[T]he course of a community as akin to that of a bicycle, forever teetering in one direction or another. That is, either towards the anarchy of extreme individualism and the denial of common good or towards the collectivism that views itself as morally superior to its individual members. Hence communities constantly need to be pulled toward the center course, where individual rights and social responsibilities are properly balanced.’